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VARGAS v. CALABRESE

May 14, 1986

JOSEPHINE VARGAS, MARTIN ELLERBEE, MARION GARGIULO, JOANN WHEELER, JANICE SELLERS, MARIA RIVERA, MARGARITA GONZALEZ, Plaintiffs,
v.
CHRISTINE CALABRESE, FRANK CALECA, LEE S. LICHTENBERGER, JULIUS D. CANTER, as Members of the Hudson County Board of Elections; JOSEPH T. BRADY, as Hudson County Superintendent of Elections; GERALD McCANN; ANNE PAPPALARDO, as District Board Member, Ward A, JOSEPH RUSSO, as District Board Member, Ward B, KATHERINE O'CONNELL, as District Board Member, Ward C, MURIEL DiBELLO, as District Board Member, Ward D, WALTER KIERCE, as District Board Member, Ward E, WILLIAM WOLFE, as District Board Member, Ward F, individually and on behalf of all District Board Members employed at the Jersey City June 11, 1985 election; JOSEPH DEVINE, MARY PATERNO, Challengers, Ward A, DENNIS COSTA, MILDRED NAPOLITANO, Challengers, Ward B, GEORGE DOLAN, JUNE BRAVO, Challengers, Ward C, MARK PICA, ELIZABETH RANELLI, Challengers, Ward D, JUAN ROSARIO, YOLANDA RIVERA, Challengers, Ward E, PHIL FLOOD, FLOSSIE THOMPSON, Challengers, Ward F, individually and on behalf of all Challengers used by candidate, Gerald McCann, at the Jersey City, June 11, 1985 election, Defendants



The opinion of the court was delivered by: DEBEVOISE

 Plaintiffs Josephine Vargas, Martin Ellerbee, Marion Gargiulo, Joann Wheeler, Janice Sellers, Maria Rivera, and Margarita Gonzalez, seven registered voters of Jersey City, seek declaratory relief and monetary damages on behalf of a proposed class of all registered black and Hispanic voters in Jersey City for alleged discrimination against minority voters during the June 11, 1985, municipal run-off election. Defendants are Christine Calabrese, Frank Caleca, Lee Lichtenberger, and Julius Canter, members of the Hudson County Board of Elections; Joseph Brady, Hudson County Superintendent of Elections; Ex-mayor of Jersey City and mayoral candidate Gerald McCann; six named District Board members individually and on behalf of all District Board members; and twelve named challengers individually and on behalf of all McCann challengers. *fn1"

 Plaintiffs allege violation of the First, Fourteenth, and Fifteenth Amendments to the United States Constitution; the Voting Rights Act of 1965, as amended 42 U.S.C. Section 1971 et seq.; and the Civil Rights Act of 1866, 42 U.S.C. Sections 1983, 1985, 1986, and 1988.

 Plaintiffs move for certification of plaintiff and defendant classes and partial summary judgment on Counts One through Thirteen of their First Amended Complaint. Intervenor W. Cary Edwards, the Attorney General of New Jersey, cross moves for summary judgment on the challenged Constitutionality of four New Jersey election laws. Defendants Board of Elections Chairperson Calabrese, and Board members Caleca, Lichtenberger, and Canter move for discovery on the issue of certification of a plaintiff class.

 Prior Proceedings

 On October 8, 1985, plaintiffs filed a motion for preliminary injunctive relief against defendant Hudson County election officials to compel them to protect the voting rights of minority voters in the upcoming Gubernatorial Election. On October 18, 1985, after a hearing, I signed a consent order specifying election procedures agreed to by the parties. At a hearing on December 22, 1985, I dismissed defendant McCann's counterclaims for indemnity from third party defendant Hudson County Democratic Party and the City of Jersey City. I also granted the motion of the Attorney General of the State of New Jersey to intervene in his own behalf.

 Facts

 Plaintiffs and defendants present divergent descriptions of the events leading up to the June 11, 1985 Jersey City municipal run-off election and of the events that transpired during the election. Top-vote getting mayoral candidates Anthony R. Cucci and incumbent Gerald McCann campaigned vigorously but neither captured more than 50% of the votes cast in the May 14, 1985 general election as required to win the mayoral race without a run-off election.

 Plaintiffs contend that Mr. Cucci received substantial support in black and Hispanic neighborhoods, particularly in Ward E-Downtown and Ward F-Bergen Lafayette. Plaintiffs allege that candidate McCann responded to this perceived threat by attempting to interfere with the voting rights of residents from targeted black and Hispanic neighborhoods. Specifically, plaintiff's allege that Mr. McCann and his supporters instigated the following abuses:

 1) Forwarding letters to residents of public housing projects tenanted by blacks and Hispanics informing them that unless their names appeared on their apartment leases they would be unable to vote and would be prosecuted for doing so. There was also a letter to residents of the A. Harry Moore Public Housing Project signed by City Housing Manager Rev. Robert Blount. Elevators at two high rise public housing buildings were vandalized on the day of elections, preventing egress from the buildings until the afternoon. Affs. of Maria Rivera and Sharon Rivenson Mark.

 2) Placing some 5,000 to 6,000 names on the Challenge List by Superintendent of Elections Joseph Brady without notification to these voters. Some of the listed individuals claim to have received sample ballots at their homes, contrary to Superintendent Brady's assertion that names were placed on the list because sample ballots mailed to their listed residence were returned as undeliverable. Affs. of Joanne Wheeler, Donald Silberman, Josephine Vargas, and Joan Walrod.

 3) Substituting, at the request of Mr. McCann, off-duty Jersey City police officers who supported McCann for experienced district board members in districts with large numbers of minority voters. These substitutions were carried out pursuant to the authority of Board of Elections members Calabrese, Caleca, Lichtenberger and Canter. On at least two occasions off duty police officers were alleged to have intimidated voters by displaying their firearms. Aff. of Glen Cunningham.

 4) Requiring, per instructions of Superintendent Brady contained in a notice to district board members, without advance notice to voters or training of challengers, that "any voter who is on the challenge list, or challenged at the polls" [would be prevented from voting unless he/she produced] "current telephone bills, current evidence that they actually reside at their registered address. A drivers license alone is not sufficient proof of current residency. These voters should also be required to produce current telephone bills, current gas and electric bills or current unaltered rent receipts." Aff. of Joseph Brady, Exh. B, Memorandum to District Board Workers.

 5) Requiring as per instructions contained in a letter from Board of Elections Chairperson Calabrese to District Board members that all persons appearing on the peremptory challenge list must obtain a court order to vote. It was further required that:

 
"In addition to the peremptory list, every district will have a number of voters whose sheets will have a challenge affidavit attached to it. These voters are not to be allowed to vote unless they produce sufficient evidence of current residence at the address listed on the voters' sheet. A driver's license alone is not acceptable proof of current residency. These voters should be required to produce at least two of the following:
 
1. Current months telephone bill
 
3. Current months rent receipt or current quarter tax bill."

 However, the letter goes on to indicate that even the above may not be satisfactory. It states: "the board members should then vote on whether the proof presented is sufficient to allow the person to vote." Also noteworthy is the failure to provide any instructions regarding providing information to denied voters on the procedure for petitioning the State courts or Superintendent Brady's office for an order to vote. Plaintiffs' Amended Complaint, Exh. A.

 6) Preparation of color-coded lists of names by the McCann campaign which were used to challenge prospective voters on the basis of race. Aff. of Sharon Rivenson Mark Paragraph 14; Margaret Hart Paragraph 4, and Donald Silberman, Paragraph 5.

 7) Inadequate bilingual assistance at the courthouse and polling places to assist Hispanic voters. Aff. of James Monson and Margaret Hart.

 As a result of the challenge lists and challenge process plaintiffs allege that black and Hispanic voters were harassed, challenged by McCann challengers without cause, and required to obtain a court order to vote because of their race.

 Gerald McCann presents a different version of the facts. He contends that widespread fraud occurred during the May 14, 1985 elections including voting by "dead people" and voters giving their residences as nonexistent houses, empty lots, and warehouses. McCann Aff. Paragraph 3. McCann also alleges that residents from certain named public housing projects engaged in fraudulent voting. Id. at Paragraph 4. McCann asserts that he notified Superintendent Brady of these irregularities. He also had his own campaign workers investigate fraud resulting in the securing by his campaign workers of district sheets and the designation of suspect addresses and potential McCann votes. Anthony Lambiase, McCann campaign coordinator, explains in his affidavit that McCann campaign workers obtained copies of district sheets from the Board of Elections to identify "locations from which people voted illegally." Mr. Lambiase states that McCann campaign workers marked the sheets with various color markers to designate empty buildings and lots. He denies that these sheets were used to designate race, color, or ethnic origin. Lambiase Aff. Paragraph 3.

 Defendants Calabrese, Lichtenberger, Caleca and Canter of the Hudson County Board of Elections deny any wrongdoing or violation of state or federal laws. In particular they disavow any impermissible motive in the appointment of police officers as district board members. They point to a June 10, 1985 order of Assignment Judge Humphreys of the New Jersey Superior Court permitting Jersey City police officers to act as District Board Members. They state that once Judge Humphreys had ruled "we accepted it and took no further action in that regard. We were represented and relied upon the advice of David Dembe, Deputy Attorney General in this matter." Calabrese et al. aff. Paragraph 6.

 Defendant Calabrese argues in her brief, that her memorandum to district board members was promulgated in her capacity as Chairperson of the Board of Elections. She further states that the voter identification requirements only pertained to those individuals who had a challenge affidavit attached to his or her voting sheet and that an affidavit would not have been attached unless the sample ballot was returned as undeliverable to the listed residence. Brief of Defendant Calabrese et al., p. 3.

 Superintendent Brady's affidavit sets forth the basis on which the peremptory order list and the challenge list were prepared for the June 11, 1985 election. Any person on the peremptory order list had a pink sticker attached to his or her voter registration sheet and was required to obtain a court order to vote. Any one on two previous challenge lists who failed to vote in those elections was placed on the peremptory order list. Names were placed on the challenge list if sample ballots mailed in advance of the May 14, 1985 municipal elections were returned by the post office as undeliverable as addressed. Names were stricken from the list if a person submitted a new registration or a residence transfer award form. An affidavit was attached to the registration sheet of each person on the challenge list for signature if his or her residence was appropriately established. Brady Aff. Paragraphs 6, 7, 9.

 Superintendent Brady, while denying any individual discriminatory actions, points to serious problems which arose during the June 11, 1985 run-off election. He specifically draws attention to the following:

 1) McCann campaign workers complained to Superintendent Brady that in the May election voters claimed empty lots and boarded up buildings as residences, and the names of people who had died were being used by voters. It was further claimed that a Mailorama mail drop in Jersey City was being used as a residence. Brady Aff., Paragraph 10.

 2) On June 11th Mr. Brady states he received a call from United States District Court Judge Ackerman in reference to complaints of interference with voting brought by an attorney, Mr. Porro. Mr. Brady reports that he stated to Judge Ackerman "that it appeared that some district board workers were demanding too much by way of identification at the polls." Mr. Brady indicated that he and Judge Ackerman reached agreement as to the following:

 
"Where a person was on [Superintendent Brady's] challenge list, two items of identification would be sufficient, one of which could be the driver's license; but where the challenge was made by a challenger or a district board worker, one piece of identification, which could be the driver's license, would suffice."

 Mr. Brady states that in accordance with Judge Ackerman's order he attempted to get this information to polling places as soon as possible by communicating it to Joseph Healy, then Jersey City Corporation Counsel, and now counsel to defendant McCann in the instant action. Mr. Healy agreed to forward this information to each polling site by using the police communications system to contact the uniformed officer on duty at each polling place. Id. Paragraph 16.

 3) Superintendent Brady further states that he logged in many complaints throughout the day on June 11, including refusal by district boards to honor court orders, observations of a gun carried by an off duty police officer serving as a district board member, and fights among district board members. Id. Paragraph 19.

 4) Superintendent Brady also describes a letter which he states was presented only in draft form by Ms. Calabrese for his review. The letter was addressed to district board members and concerned required forms of voter identification. He contends he did not see the final form of the letter until the afternoon of June 11 and that the letter was never approved by the Board of Elections. Id. Paragraph 25(a).

 The seriousness with which it appears that Superintendent Brady took the complaints of interference with voting rights is indicated by his statement to a reporter that he intended to mail out a 27 question form to all district board workers inquiring about voter harassment and intimidation by local board members and challengers including plainclothes police officers, interference with individual's right to vote, and display of guns at the polling places. McCann Aff., Exh. B, Hudson Dispatch, 8/20/85.

 Nevertheless, Superintendent Brady disputes many of the factual assertions of the plaintiffs and argues that he has no duty or authority to provide bi-lingual assistance at polling sites. Id. Paragraphs 28, 29, 32.

 Defendant District Board Members are unrepresented and have not answered the complaint or responded to the instant motions. Similarly defendant McCann challengers have not answered the complaint. Several of these individuals, however, have written letters to the court. Mildred Napolitano, a McCann challenger, states she was a challenger at Ward B, District 4 from 4 to 8 P.M. She states that she did not challenge any voters. District Board Members William Wolfe and Walter Kierce state in their letters that they are appearing pro se and deny all allegations. McCann challenger Dennis Costa presents a sworn statement to the court averring that he challenged no voters during the election.

 Discussion

 1. Defendants' motion for discovery on the issue of certification of a plaintiffs class

 Defendants Calabrese et al. joined by defendant McCann move for discovery to determine if this case concerns only a few more voters than the named plaintiffs or hundreds of voters. In particular, defendants seek discovery on whether plaintiffs undertook to solicit class members and the results of such solicitation. Under appropriate circumstances discovery on the merits of class certification has been permitted by the courts.

 
There can be no doubt that it is proper for a district court, prior to certification of a class, to allow discovery and to conduct hearings to determine whether the prerequisites of Rule 23 are satisfied. . . . Indeed a district court may be reversed for premature certification if it has failed to develop a sufficient evidentiary record from which to conclude that the requirements of numerosity, typicality, commonality of question, and adequacy of representation have been met.

 Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982). However, in the instant case I have adequate information before me to allow consideration of the factors required to determine the appropriateness of class certification.

 
"Enough [has been] laid bare to let the judge survey the factual scene on a kind of sketchy relief map, leaving for later view the myriad of details that cover the terrain."

 Professional Adjusting Systems of America, Inc. v. General Adjustment Bureau, Inc., 64 F.R.D. 35, 38 (S.D.N.Y. 1974).

 The trial court is obligated to determine if a class action is maintainable "as soon as practicable after the commencement" of the action, Fed. R. Civ. P. 23(c)(1). I will therefore proceed to do so on the record before me. Defendants' motion for discovery on the issue of plaintiffs' class certification is denied.

 2. Certification of a Plaintiff's Class

 Fed. R. Civ. P. 23(a) contains the preliminary requirements for maintenance of a class action as follows:

 
"One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) ...

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